Constitutional Words About Words: Protected Speech and "Fighting Words" Under the Australian and American Constitutions

• Author: William Buss
• Position: O. K. Patton Professor of Law (Yale B.A., Harvard L.L.B.).
• Pages: 489-514

Page 489

William Buss: I wish to acknowledge the valuable contributions of my Research Assistants, Mennatallah Eltaki; Harmonly Mappes; Mathew Stromquist; Annalies VanderValk on this and other work.

In Coleman v. Power,¹ Patrick Coleman was distributing pamphlets which contained charges of corruption by police officers, including Officer Brendan Power. When Power asked to see the pamphlet, Coleman pushed Power and said loudly, "This is Constable Brendan Power, a corrupt police officer."² Coleman was convicted in Magistrates Court in Townsville, Queensland, Australia, for a violation of Section 7(1)(d) of the Vagrants Act, which made it a crime for any person in a public place to use "threatening, abusive or insulting words to any person. . . ."³ The conviction was overturned by a divided High Court of Australia.⁴ Constitutional decisions of great significance are often decided by veryPage 490 small matters. It remains to be seen whether this will turn out to be such an example.⁵

This case involves the words of Patrick Coleman, who has been described as "a well-known political activist" with a "history of complaints against police."⁶ The case also concerns the words of a statute and, at least obliquely, the "Fighting Words" doctrine. It surely involves the words of a constitution-perhaps the words of two constitutions. I argue that those constitutional words may not matter quite as much as we think they do.

I American Background to Australian Constitutional Law

To put the "Fighting Words" of this Article into perspective, it is necessary first to paint a broad-brushed view of the Australian Constitution and its relationship to the U.S. Constitution.

A Federalism

At the conclusion of the American Revolutionary War, Great Britain needed a new place to send its convicts whom she did not want to house in the British Isles.⁷ "Botany Bay" in the southwest Pacific was identified as a possible replacement for the American Colonies; in 1788, a fleet of ships arrived with their cargo of convicts in Sydney harbor on the Australian continent. One-hundred years later, with their penal-colony origins long behind them, the Australian Colonies followed their American cousins in a move for federation-though by no means for revolution.

Representatives from the several Australian colonies (later States) met in a series of conventions over a ten-year period to debate and forge a national constitution.⁸ The Constitution of the Commonwealth of Australia, technically a British statute, effective January 1, 1901, is a fascinating merger of American and British constitutional ingredients.

The main similarities to the U.S. Constitution are that it is a written document, and establishes both a federal system and judicial review.

During the ten years of constitutional gestation at the end of the Nineteenth Century, the Australian framers met on eighty-five separate days. Some discussion about the United States or the U.S. Constitution or American constitutional law appears on nearly every day. More often Page 491 than not, the discussion involved something of substantial importance to the framers' debate of the moment. This was acknowledged by Sir Owen Dixon, a great Australian High Court Justice, who referred to "the model they kept before them; that is, the American Constitution of 1787."⁹

It is easy to open the Australian Constitution and find many structural features and even particular words that are recognizable to anyone familiar with the U.S. Constitution. But to say that the Australians kept the U.S. federal model constantly before them is not to say that they always adopted the same constitutional solution to a problem that the Americans did.¹⁰ But on big things, they often did. For example, they solved exactly the same large state-small state crisis in exactly the same way as the Americans did: a population-based House of Representatives and a state-based Senate. On many things, not all small, they took different approaches that were influenced by what the Americans had done and, particularly when the Australian framers thought that they knew, how those approaches had worked in the United States. They did not, incidentally, follow the American decision to meet secretly and make no public record. They deliberately chose to have an open process, and they kept a verbatim transcript of their proceedings.

The transcript was immediately published, and in 1986, it was re-printed in five volumes that spanned 4,557 pages.¹¹

The Australian Constitution is American-like in that it is written and is as it is sometimes said, a "rigid" constitution (in contrast to the British unwritten and "flexible" constitution). Along with federalism and a written constitution, Australia also has judicial review and a corresponding modification of English parliamentary sovereignty.

The British half of Australia's British-American Constitution is two fold. First, there is "responsible government," sometimes called the Westminster system or cabinet government. It is a form of government in which the executive is drawn from the legislative branch, and thus precludes a principle of legislative-executive separation of powers. Page 492

Merging responsible government and a federal system has contributed to producing at least one constitutional crisis in Australia.¹²

There is clearly a separation of the judiciary from the legislative and executive branches in Australia. In this respect it is different from the United Kingdom more in degree than in kind. The difference in degree is in part a direct effect of the written Constitution and the federal system.

The courts are all but inevitably exercising a power of judicial review to resolve questions of allocating power between the states and the national government, and exercising that power independently is highly desirable if not an absolute necessity. The separation of judicial power is also a result of the fact that in Chapter III of the Australian Constitution-as in Article III in the U.S. Constitution-judicial powers and functions are spelled out in some detail.

The second major English dimension shaping Australian constitutional law is the almost total absence of a Bill of Rights. Dean Michael Coper of Australia National University once referred to "five flimsy freedoms" in the Australian Constitution.¹³ He was referring to five specific provisions in the Australian Constitution. One might think, "Well, the U.S. Bill of Rights consists of only ten separate amendments (and two of them are not really sources of individual rights), so should one make such a big deal about five versus ten?" But the distinction is hugely greater than five to ten. First, the first eight amendments of the U.S. Bill of Rights include many more than eight separate rights. Second, there are some significant rights missing from the Australian Constitution-for instance, no "freedom of speech" provision in those or any other terms. Third, there is nothing like the U.S. Fourteenth Amendment Equal Protection and Due Process clauses. Fourth, the five rights that Australia did insert in its Constitution have been very narrowly interpreted.¹⁴ Finally, the omission of more individual rights protections in the Australian Constitution was, at least partly, based explicitly on a principled decision to rely on the protection of responsible government and the democratic process.¹⁵

B Freedom of Political Communication

All of this, so far, is general background. The foreground of any discussion of "Fighting Words" in Australian and American constitutional law starts in 1992 when, quite remarkably (with no Bill of Rights and no First Amendment equivalent), the Australian High Court decided that Australian constitutional law included an "implied freedom of political Page 493 discourse."¹⁶ The Australian Constitution provides, expressly, that members of the House of Representatives and members of the Senate are to be chosen by the people.¹⁷ Furthermore, amending the Australian Constitution is based directly on the vote of the people.¹⁸ Based on these specific provisions, and supplemented by others,¹⁹ the Court reasoned that the people's meaningful exercise of these voting rights depended on the voters being able to communicate with office holders, and candidates for office, and with each other. In other words, the High Court adopted the reasoning of Alexander Meiklejohn, the influential American political philosopher.²⁰ Meiklejohn argued that American democracy was built on the self-government by the people and could not thrive without freedom of speech. The purpose of exercising that freedom, he argued, was to do the business of governing.

The High Court did not cite Meiklejohn in its first two ground- breaking cases,²¹ but it did cite U.S. cases in these and later cases applying the newly discovered constitutional freedom. Of course, these references were not based on anything that the framers of the Australian Constitution considered at the end of the Nineteenth Century; they were based on the breadth and depth of American free speech jurisprudence at the end of the Twentieth Century. In one of the two original cases, Chief Justice Mason raised the question whether "freedom of communication in relation to public affairs and political discussion is substantially different from an unlimited freedom of communication."²²

But the Court has carefully adhered to the limitation relating speech protection to the political process.²³ As Justice Gerard Brennan (later Page 494Chief Justice Brennan) said...